Congress Needs to Take These Steps to Shore Up Chevron Response

It will take some time for lower courts, agencies, and attorneys to decide how to proceed in light of the US Supreme Court decision overruling Chevron doctrine of deference to agency interpretations. There are important implications for Congress too.

Some advocates of overruling Chevron presented the doctrine’s demise as an opportunity to reinvigorate congressional primacy in policymaking, returning power from the executive branch to its rightful home in the legislature. Or, as some noted more bluntly, Congress needs to do its job.

For now, let’s set aside the possibility that Congress, aware of its own limitations, has been doing its job as it thought best by delegating significant authority to agencies. Agencies can respond to new developments yet also remain attentive to congressional desires in ways federal courts don’t.

But let’s accept the critics’ point, contestable though it is, that Congress should make more policy choices. How can legislators do that job better?

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Here are a few possibilities for helping Congress.

Hire more legislative staff and pay them more. A weakness of Congress relative to the executive branch and the private sector is lack of institutional policy expertise. Congress needed to restore its withered capacity even before Loper Bright. Some recent positive steps moved toward that goal, but the need is still great.

End the Senate filibuster. Our Constitution divides power in multiple ways, so some hurdles to congressional action are hardwired. Between the House, Senate, and President, legislation must navigate a tricameral system. The filibuster, though, isn’t hardwired into constitutional design but is instead the product of Senate rules.

The filibuster’s now-routine use adds an additional barrier to legislation that already requires multiple majorities. It is likely that major legislation on immigration and climate change—two areas where ambitious agency moves have been struck down—would have been enacted but for the filibuster.

Enact the Supreme Court Review Act. This proposed law would create special fast-track procedures for legislation that responds to Supreme Court decisions. The courts themselves sometimes call on Congress to amend the law in response to judicial interpretations that legislators may not like. Justice Samuel Alito did so just recently in his concurrence in the case holding that current federal statutes don’t outlaw bump stocks. This mechanism would facilitate that dialogue, and it’s entirely constitutional.

Switch from single-member House districts to multi-member (or statewide) districts with proportional representation. If tweaks to congressional procedure are thought inadequate, one can go bigger. Maybe the problem is the incentives of the legislators, which are shaped by representational structures.

The Constitution requires only that states have representation in the House according to their population, not that states be divided into (gerrymanderable) districts each with a winner-take-all election. Switching up this system could reduce polarization and increase responsiveness.

No to all of those ideas? That’s fine. But then what instead?

Some may prefer the proposed REINS Act, which would require congressional enactment of major regulations. Or, for people who believe no reforms to Congress are needed and that removing opportunities to delegate to agencies will by itself whip Congress into shape, then they should defend that position.

In doing so, however, consider the empirical evidence on legislative performance rather than rely on what may seem common-sense assertions about the baleful effects of Chevron and benefits of its demise.

If the prescription is just to criticize Congress as dysfunctional, calling members lazy or dumb, that starts to look like contempt for representative democracy.

That goes for the courts too. Rather than serve as a reliable partner, the federal judiciary too often stymies Congress’ ability to do its job as Congress sees fit. In disputes over oversight and access to information, for example, courts side with the executive or let the executive run out the clock.

In interpreting statutes, courts treat Congress like a failed law clerk rather than try to understand how the institution operates. If courts want a more active Congress, it’s hardly fair for them to undermine it at the same time.

An exhortation to Congress to do its job should be the start of a conversation, not the end.

The cases are Loper Bright Enterprises v. Raimondo, No. 22-451, and Relentless v. Department of Commerce, No. 22-1219, decided 6/28/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Aaron-Andrew P. Bruhl is professor at William & Mary Law School and focuses on statutory interpretation, federal courts, and the legislative process.

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